"Law school racial preferences give blacks fancier degrees, but also systematically lower their GPAs," (i.e., their law school grades). So concludes a fascinating study by Richard Sander, a law professor at UCLA. Entitled "A Systemic Analysis of Affirmative Action in American Law Schools," it appeared in the November 2004 issue of the Stanford Law Review (Vol 57, pp 367-483), online here. (The quotation is at page 479.)

More sharply and fully than anything I have seen, the study documents enormous academic gaps, in both skills and performance, between black and white law students, at the law schools they attended. Sander blames the gaps squarely on huge racial preferences in admissions. Due to these preferences, he contends, black students with mediocre credentials (low performance on the Law School Admissions Test, and low Undergraduate Grades), were placed in schools with white classmates whose credentials were far superior. The unhappy result: most black law students clustered at the bottom of their classes in grades and quality of work.

Sander's primary database is the Law School Admission Council's thoroughgoing Bar Passage Study (BPS), involving 27,000 law students who matriculated in 1991. The Study classified 184 American law schools into six groups according to academic selectivity, and followed the students for five years -- from admission, through graduation from law school, and examination for the bar.

The BPS data mercilessly confirm the width of the racial gaps in skills and performance -- creating a huge academic mismatch. They clearly support Sander's view that law school racial preferences give some blacks fancier degrees." However, they also demonstrate that the preferences "systematically lower [black] Grade Point Averages."

To measure the academic knowledge and skills of the entering law students, the Bar Passage Study used their Law School Admission Test scores (LSATs) and their Undergraduate Grade Point Averages (UGPAs). Sander collated this information into an Academic Index (AI) for each student, weighing their LSATs at 60% and their UGPAs at 40%. You may have thought that the black-white gap measured by such an index would be largest at the top, perhaps in the fourteen "very elite schools" of Group 1, or in the sixteen "other national schools" of Group 2. Not so, as you can see from the following table:

Table 1*

The Black-White Academic Index Gap in Six Groups of American Law Schools,
1991 Matriculants
Showing the Median Academic Index for entering Blacks and for entering Whites,
in each Law School Group

Law School Group

Black Median AI

White Median AI

B/W Gap

1. 14 Very Elite Schools

705

875

170

2. 16 Other "National" Schools

631

805

174

3. 50 Midrange Public Schools

586

788

202

4. 50 Midrange Private Schools

560

725

165

5. 18 Low-Range Private Law Schools

493

665

172

6. 7 Historically "Minority" Schools

516

641

125

[From Sander's Table 3.2, page 416]

Notice that the black/white gaps in Law School Groups 3, 4 and 5 are quite as large as in Groups 1 and 2. As will appear in Table 2, immediately below, the median black student in Group 1 had an Academic Index score like that of the bottom 1% of whites. (The median is the point that half the group score above, and half, below.) In other words, 50% of the blacks in Group 1 scored below 99% of the whites. In the other five groups, 50% of the black students scored, respectively, below 97%, 99%, 98%, 99%, and 89% of the white students.

You may have thought that if racial preferences had not existed, the blacks who attended top schools would still have been eligible, on the merits, for admission one or two tiers down. As you can see in Table 1, that would have been true for a few, but not for most. On the contrary, the boost implied by the BPS data averaged three or four tiers. The median Academic Index score for blacks admitted to the Group 1 schools was 705 (vs. white 875). To find a white median score (725) that was similar to the Group 1 black median score, you must descend three tiers to the schools in Group 4. For blacks admitted to the Group 2 schools, the median Index score was 631 (white 805). A similar white median score (641) was only available, four tiers down, in the seven schools of Group 6.

These figures indicate a huge mismatch between the academic skills of the vast majority of these black students, and the academic setting in which they studied law. It seems reasonable to expect that most students would study harder, learn more, and get better grades, in classes where their legal skills and knowledge were comparable to those of other students, rather than overwhelmingly inferior. Wouldn't black (or any other) students, with an Index score of 705, have earned much higher grades in a "midrange private" law school than in a "very elite" school?

Such expectations inform Sander's hypothesis that affirmative action, by boosting blacks into more difficult law schools than they would otherwise have attended, caused them to get lower grades than they would otherwise have earned. His data fully support this hypothesis. Some of these data appear in Sander's Tables 5.1 and 5.3 [pp 427, 431], which I have combined in the table below :

Table 2

First-Year Grade Performance of Black Law Students,
Proportion of Black Students in Each Decile, Starting with the Lowest Decile,
Within Each Group of Schools

In Group 1, 50% of the blacks had a first-year Grade Point Average below 95% of the whites. In the other groups, the first-year grades of 50% of the blacks were, respectively, below 93%, 95%, 92%, 93%, and 76% of the white students. This may be easier to visualize in the following table :

Table 3

Group of Law Schools

% of white students
above black median
Academic Index Score

% of white students
above black median
Grade Point Average

1. 14 Very Elite

99

95

2. 16 National Public

97

93

3. 50 Midrange Public

99

95

4. 50 Midrange Private

98

92

5. 18 Low-Range Private

99

93

6. 7 Historically Minority

89

76

The black-white gap in first-year grades was slightly smaller than the gap in Academic Index scores, in every school group. Despite the putative handicap of affirmative action, black students' first-year academic performance was slightly better than that of white students with similar academic skills.

* * *

What about second- and third-year law school grades? According to Sander [page 435], the BPS data include the cumulative Grade Point Average (GPA) of students at the end of their first year, and at the time of law school graduation. Comparing the total grade distribution for all students in the data set would be misleading, because many of the weaker students drop out after the first year of school. His Table 5.4 therefore includes only black students who actually completed law school, and compares the class standing of these students at the end of the first year and at the end of the third year.

Sander's Table 5.4 (p 435)
Grade Point Average (GPA) Distribution of Black Students
at the End of their First and Third Years
for All Law Schools in the Bar Passage Study

Proportion of Black Law School Graduates with Grades in Each Decile
Beginning With Bottom Decile

1st Year GPA

3rd Year (Cumulative) GPA

1st Decile (bottom)

41.4%

42.5%

2nd

17.4%

18.0%

3rd

11.3%

11.2%

4th

8.2%

9.0%

5th

6.5%

5.8%

6th

4.3%

5.0%

7th

3.3%

2.5%

8th

3.3%

2.5%

9th

2.3%

1.8%

10th

2.0%

1.7%

[number of Black students in Sample: 1385]

Sander summarizes : "In general, the more elite the law school, the higher the graduation rate. Table 5.5 illustrates this with the BPS data. Among the law students matriculating in 1991, 96.2% of the Group 1 students eventually got law degrees, compared to only 87% of the Group 5 students. Black attrition rates are higher than white rates, and the gap grows as one moves down the spectrum of schools (page 437).

Sander's Table 5.5 (Page 437)

Proportion of Matriculants in Each Law School Group
Not Graduating in Five Years

In Part 1, I summarized Prof. Sander's sensational claim, that the black students in the Bar Passage Study (BPS) had much lower first-year grades than they would have received, if racial preference had not elevated them into much tougher law schools. At all six law school levels, black first-year grades were as high, or slightly higher, than those of whites with the same Academic Index scores. Nevertheless, black students' first-year grades were far lower than the grades of the overwhelming majority of their white fellow students, whose Academic Index scores were much higher.

Of course, first-year grades are only one indication of law school performance. Two other important measures are graduation and passing the bar exam . On these measures, how did blacks compare with their white fellow students? In both cases, their performance was much worse . Concerning graduation, the BPS data show that for each 60-point interval of their entering Academic Index (AI), the proportion of blacks not graduating was always larger than the proportion of whites, usually by 25% or more. Concerning the bar, the proportion of blacks failing the first attempt was larger in every Index interval, often by 80-100%. [Tables 5.7, p 441, and 6.2, p 446]

What explains this surprising change in the relationship between entering skills and performance? Concerning grades, equal black and white skills resulted in nearly equal black and white first-year GPAs. Concerning graduation and the bar, equal black and white skills resulted in much lower black performance.

Thus, taking graduation first, the puzzle is: Since blacks' first-year grades were as good or slightly better, than those of whites with equal Index scores, why were their fifth-year graduation rates much worse? Obviously, it cannot be because black first-year grades were low, since they were no lower than those of the whites with whom they are being compared.

In a regression analysis, Sander finds only two strong predictors of graduation rates: one's first-year GPA, and the selectivity of one's school. The former was three times as powerful as the latter. [Sander Table 5.6, p 439] This finding only adds to the mystery. However accurate a predictor in other situations, first-year GPA totally misfired here. It predicted that the black students whose first-year grades equaled those of white students with equal Academic Index scores would graduate at an equal rate. In fact, they graduated at a much lower rate. (See Sander's Table 5.7, below.) The explanation for this strange effect must lie in another cause.

Sander's Table 5.7 (p. 441) Proportion of White and Black 1991 Matriculants
Not Graduating Within Five Years,
By Academic Index Level

Index Range

Proportion of Matriculants Not
Graduating Within Five Years

Number of Blacks
in LSAC Sample

Whites

Blacks

Under 400

N/A*

39.6%

96

400-460

22.2%

33.1%

139

460-520

19.7%

25.6%

320

520-580

16.4%

21.1%

417

580-640

12.1%

15.4%

370

640-700

9.6%

10.7%

280

Over 700

7.1%

7.5%

239

*There are too few whites at this level to make a meaningful comparison.

Source: LSAC-BPS Data supra note 133.199

As Sander writes, concerning this Table [p 441]: affirmative action has two separate negative effects on black graduation rates. The first resultour main focus in this discussionis the boosting of blacks from schools where they would have had average grades (and graduated) to schools where they often have very poor grades. For blacks as a whole, this phenomenon adds four to five points to the black attrition rate.The second result follows from the cascade effect. Lower-tier schools admit blacks who would not be admitted to any school in the absence of preferences. These are the students with very low index scores (low 400s and below), who have very high attrition rates (33% to 40% in Table 5.7). This second phenomenon adds another six or seven points to the overall black attrition rate."

Sander's Table 6.2 (p. 446)
Proportion of Bar-Takers Failing on the First Attempt
(for the Entire United States)

Index Range

Whites

Blacks

400-460

52%

71%

460-520

34%

55%

520-580

26%

47%

580-640

19%

34%

640-700

13%

26%

700-760

9%

12%

760-820

5%

12%

Bar-Takers in
Sample

19,112

1346

[Source: LSAC-BPS Data, supra note 133.]

For law students overall, there is no reason to doubt the high correlation Sander found between grades, graduation, and bar passage. But however great the correlation, it would be unable to explain why black and white law students, who had the same Academic Index Scores at entrance, had very different rates of graduation and of passing the bar.

What if the crucial variable were not index range per se, but the distance below the class median? The BPS data amply substantiate Sander's contention that black students were boosted by racial preference into much more selective schools than they would otherwise have attended. In this situation, although black grades in the first year were not below the grades of whites with equal skills, they were far below the class median in the school they attended. This, in turn, might well have resulted in a level of discouragement with studying law, and becoming a lawyer, that led to lower rates of graduation and bar passage.

In Table 6.1 (page 444), Sander reports a regression analysis indicating that black law students who attended the same Law School Tier passed the bar at the same rate as white students with the same first-year grades and the same Acacemic Index. This leaves open the possibility, begging to be checked, that black students who attended a more selective school tier had lower bar passage rates than white students with the same first-year grades and the same Academic Index scores.

If this hypothesis proved to be true, it would help explain why the BPS black students, despite having first-year grades as good, or better, than those of whites with equal Academic Index scores, had much lower rates of graduation and bar passage.

* * *

Sander also finds (sensationally and paradoxically) that ending affirmative action would increase the annual number of black students passing the bar. This has been vigorously disputed by scholars who argue that Sander's numbers are way off, overestimating the number of blacks who would apply, and greatly overestimating the proportion who would be admitted.

The problem documented in this essay is a huge gap in academic knowledge and skills between most black and white law students who matriculated in 1991. Sander argues persuasively that this academic mismatch, caused by preferential admissions, was noxious for black students; and thus that racial preferences in law school admissions did blacks more harm than good.

Sander's essay is full of invaluable information concerning the history and degree of racial preference in law school admissions, and the academic mismatch it creates. Nowhere else will the reader find so clear a report of the reality that law schools were living in the 1990s, but never acknowledged. In the midst of Sander's excellence are two sensational claims: that affirmative action, on balance, greatly depressed black law school grades, and that without it the annual number of blacks who became lawyers would have increased.